Police Photo Policies Focus of Controversy : Law enforcement: Practice violates civil rights, critics say. O.C. officers defend it as anti-gang tool.

Last winter, Ygnacio Gutierrez returned to his hometown haunt on the south side of Huntington Beach, where gang wear is de rigueur and high fashion is baggy, hem-dragging, Ben Davis pants.

So it didn’t surprise Gutierrez when police screeched to the curb of his old neighborhood armed with Polaroids, poised to snap Latino gang members sporting basic khaki.

But then the lens focused on Gutierrez, 26, who stood among them in a bright-colored Izod alligator shirt and slim blue jeans, protesting vehemently that he had done nothing wrong.

His unsmiling photograph appeared destined for an album of local gang members until a police officer glimpsed someone vaguely familiar: Ygnacio Gutierrez, gang intervention counselor.

Gutierrez said he retrieved his photograph. But few others share the same fortune in Orange County, where local police departments continue to rely on the controversial Polaroid sweeps to identify members of a growing gang population estimated at more than 16,000.

It is a tactic so encompassing that critics complain the photographs have captured images of gang members accused of drive-by shootings along with college students lingering on the beach for a moonlight barbecue.

The practice has endured in Orange County despite a November court ruling labeling a photo stop in the city of Orange as “too significant an intrusion on individual liberties to be justified by the public interest.”

But Bruce D. Praet, a former Orange police officer and an attorney for the city of Orange, responds that the “opinion was so overblown . . . there’s nothing in that case that impacts the policy.”

The current law enforcement view is summed up by a memo from Dist. Atty. Michael R. Capizzi’s office that circulated among local police chiefs. Even when a person is not a crime suspect, the memo argues, police “may photograph individuals so long as the individuals do nothing to prevent the taking of the photograph.”

Many local police departments defend the photography as a vital investigative tool to quash gang activity and crush crime.

That grand vision alarms civil libertarians and members of some community groups who contend the policy appears directed largely at Asian and Latino teens in violation of constitutional protections from unreasonable searches and seizures.

This summer, the U.S. Civil Rights Commission will examine the issue as part of a broader investigation into allegations by community groups of institutional discrimination against minority groups in Orange County.

In the meantime, the American Civil Liberties Union filed a federal lawsuit Thursday seeking to halt the photo stops and to destroy the cache of photos collected by the Garden Grove Police Department, which is one of many Orange County police departments relying on photo sweeps.

“Law enforcement has cast too wide of a net,” said Robin Toma, a staff attorney for the ACLU. “It’s so wide that it picks up a lot of innocent young people who happen to like to dress in a hip way. Whenever we get into a period of rising hysteria about an issue, there’s a tendency to give police very little scrutiny, to let them do whatever they want at any cost.”

So far the net has snared young men like Daniel Do, 22, a first-year Loyola law student of Vietnamese descent, who said photo-taking by police was so frequent among his Vietnamese friends that they joked about it. Do has no criminal record and has never been arrested.

It caught Albert Bui, 22, a Vietnamese-born English major at UC Irvine, who said he felt fear instead of mirth when his photo was taken two summers ago. The coals of a barbecue fire were just starting to burn red when Bui said Laguna Beach police asked him and seven other Asian college students for identification.

“They said there had been some sort of a fight between Asians and another group of people,” recalled Bui. “One by one they took each of us aside and asked if we were part of a gang. I said ‘no’ and they said OK. Then they just started taking pictures.

“Wow, it was strange,” he added. “We didn’t ask if it was legal. We were scared, but we were all relieved they weren’t taking us in.”

Gutierrez, the Anaheim gang prevention counselor, said he was visiting relatives in January when his confrontation with police began.

As he paused to greet some teen-age acquaintances, a bottle rocket exploded about 200 feet away, Gutierrez said. Then the police cars rushed to the scene.

“Most of them were gang members, but I was there and they weren’t involved with the bottle rocket,” Gutierrez said. “It was clear it wasn’t them because it happened so far away from where we were standing.

“So the police started taking photos. They had lined up 10 to 15 of them against a wall and then an officer who didn’t know me ordered me against the wall. I said, ‘You’re not going to take my picture.’ ”

Then Gutierrez changed his mind, convinced, he said, by the officer’s effective counter-argument: “Get against the wall before I kick your ass.”’

*

Last autumn, Police Chief Stanley L. Knee of Garden Grove and his assistants gathered in a spare conference room for a delicate conversation that summed up the debate over photo sweeps.

Uniformed officers sat on one side of a long table, facing a row of Asian community activists and the Vietnamese parents of a Tustin High School honors student whose Polaroid snapshot is stored in secret police files.

Khoi Ngoc Pham and his wife, Van, listened politely as the police chief and his officers explained that over the years the photographs had provided important clues that helped them solve robberies, home invasions and a shooting outside a local church.

“I mean if we solve one homicide, solve one robbery and there’s 10 other photos that do not lead to the solving of a crime, does that make it ineffective?” one officer asked, according to transcripts of the meeting.

But the response did not move Pham and his wife, Vietnamese immigrants who settled in Orange County in 1975 and whose only daughter, Quyen, was born here 16 years ago.

They couldn’t understand why police took photos of Quyen and two of her young friends one evening last July as they waited for a ride outside a Garden Grove mini-mall. How could a snapshot of Quyen--a 10th-grade student with an A-plus average, and a fondness for hip, baggy clothes--solve a crime? They insisted she wasn’t a gang member.

“How come you take her picture?” Van Pham demanded to know. “My daughter is very good student. They still took her picture and talk very rude and very bad to her. . . . I really want to have her picture. You should just take photos of ones that you suspect, not these innocent kids. You’re wasting money. You’re wasting time.”

Knee reassured the family that if there had been a mistake, they could meet with him privately to discuss the incident. He offered them his phone number, his secretary’s name, a time to meet.

“The last thing that we really want to do is take photographs of innocent people,” Knee said. “That doesn’t serve any purpose. Any photograph that we take is meant to identify crime or reduce crime. If we make mistakes we have a system for you to respond to.”

With those lingering words, the meeting broke up and the officers and the Pham family bid each other goodby.

They never met again. Quyen’s photo remains in a police file. And today the Phams communicate with the Garden Grove Police Department via legal briefs in the federal lawsuit filed by the ACLU.

*

The clash of individual rights versus community safety is not an issue unique to Orange County police departments.

The city of San Jose wrestled with it after pressure from Vietnamese community groups to stop the collection of photographs for an Asian mug book. Amid protests from Asian groups, the city of Philadelphia last fall virtually ended the practice of snapping photographs of suspected Asian gang members.

Civil rights lawyers and top police officials there worked out a compromise that allows photographs to be taken only with the express permission of the police commissioner. According to the Philadelphia guidelines, photos must be destroyed if the person involved is cleared of suspicion in a crime. And then that person must be notified in writing that the photo was destroyed.

“You just don’t round up people like some kind of cattle call,” said Michael A. Nutter, a Philadelphia city councilman who spearheaded a successful campaign to create a civilian review board to monitor police abuses. “To people who say the police are fighting gangs, I say: How enthusiastic would you be if it was one of your kids or your wife or your husband who was rounded up when they had not done anything wrong?”

Under federal law, police have the authority to take surveillance photographs of people in public places, such as demonstrators at protests or Mafia members at funeral wakes.

But when police detain someone, they must have more than a whim or a rumor that a person is involved in a crime, civil rights lawyers say.

In many Orange County police departments, officers are expected to make a rapid set of decisions before clicking the shutter.

“First you have to have reason to stop,” said Garden Grove Police Capt. Scott Jordan. “Then you ask, will the individual voluntarily consent to a photo? Will it serve some legitimate purpose? I guess the point is, we stop a lot of people and photograph a few. We don’t photograph everyone we stop. We do it only if we need that photo to enhance some investigation.”

Police use another mental checklist to determine whether a person is a gang member. The list includes an admission of gang membership, residence in an area populated by gangs and dress that includes gang clothes or tattoos. Police also rely on tips from informants to identify someone as a gang member.

But those standards raise additional civil rights issues. Who determines the changing fashion of gang wear? What happens if an ex-gang member is stuck with his former gang’s tattoo?

John Robertson, police chief in the city of Orange, said he advises young people to avoid wearing gang fashion.

“Don’t dress like a gang member,” he said. “It may invite trouble for you. If I had my way, everybody would wear the same thing.”

It was Robertson’s department which drew the rebuke in December from the 4th District Court of Appeal, which criticized a photo stop that involved a young Latino man, Mynor Arnold Rodriguez. The photo was later used to identify him as the gunman in the shooting death of a Corona man.

Rodriguez’s murder conviction could have been threatened because of the unconstitutional stop, but the court found that he had also been identified through other means.

“The guarantees of the Fourth Amendment do not allow stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity,” the three-judge appeals panel wrote. “Mere membership in a street gang is not a crime.”

The decision has caused local police to take more care documenting why a person was stopped and photographed.

Yet even with those safeguards, some law enforcement experts question whether the photo sweeps are really worth the effort.

“We find ourselves doing things we never thought we would do 15 years ago,” said James Rowell, a criminal justice professor at Ferris State University and a retired Los Angeles County sheriff’s deputy. “The problems are so great and the solutions are so few that we are stretching for ideas to be able to control the gang violence.

“Obviously, it has a negative impact on police community relations,” he added. “Police departments have historically not done a good job of dealing with minority communities.”

*

In a placid Anaheim neighborhood just footsteps from Disneyland, minister Carlos Quinonez senses the tension between the police officers who preside over the streets and the residents of this mostly Mexican American Jeffrey-Lynne community.

Quinonez, formerly affiliated with Set Free Christian Fellowship and now a Bible-toting street preacher for Anaheim gang members, has lately been mixing his impromptu sermons with rousing pep talks in Spanish about civil rights.

God inspired the sermons, he said, but his own recent observations prompted the legal crusade. Too many times, he said, he has stumbled across scenes of young Latino men who are being photographed even though it appeared to him they had done nothing wrong.

Early this month, Quinonez began to notice that the photo sweeps were increasing in frequency.

Every time he would gather a circle of boys around him, the complaints would spill like sour milk. Many laughed at the number of times their photos had been taken. But nobody ever complained to authorities.

Seventeen-year-old Jose Rodriguez, who was photographed earlier this year, complained about a white officer he said told him to go back to Mexico. Jorge Olivarria, 23, raged that his photograph was taken after a car stop that ended with a ticket for a non-functioning brake light. Humberto Alatorre, 19, wondered why police would need so many photographs of his face.

Anaheim police Sgt. Mike Zigmund said officers are taking more photos in their quest to crush gang activity. Many officers have even purchased their own Polaroid cameras, which perhaps explains why more photographing is taking place, said Zigmund, who praised the photos as an effective crime-fighting tool.

“This has nothing to do with prejudice and they’re trying to make it seem like we’re prejudiced,” Zigmund said. “When you’re in the Jeffrey-Lynne neighborhood, who are you contacting? Latino gang members--that’s who rules those streets.”

Besides, Zigmund added, “What’s the big deal about taking your picture if you’re not doing anything wrong?” One night, Quinonez felt compelled to preach a legal message as he watched several patrol cars descend on a group of teens returning from a wedding party.

“They didn’t appear to be drunk or doing anything wrong,” Quinonez said. “They were identified as gang members and so they were questioning them. They made them sit down on the (ground). So I kept telling them not to submit to the photos.”

In Spanish, Quinonez assured them they had nothing to hide. If you haven’t done anything wrong, he said he told them, it’s against the law for them to take your pictures.

The preacher was convinced that one teen was ready to balk until he looked again at the police officers.

“ Que hacemos? “ the boy asked in a deflated voice. What can we do?